FSCO A02-001360

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

RUBAN THANGARASA

Applicant

and

GORE MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A MOTION

Before: John Wilson

Heard: December 15, 2004, by teleconference

Appearances:

Linda Wolanski for Mr. Thangarasa

Anna-Marie Castrodale for Gore Mutual Insurance Company

Issues:

The Applicant, Ruban Thangarasa, was injured in a motor vehicle accident on March 31, 1998. He applied for and received statutory accident benefits from Gore Mutual Insurance Company ("Gore Mutual"), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Thangarasa applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. The arbitration hearing in this matter was completed on June 30, 2004. Gore Mutual has since obtained the results of a DAC assessment concerning Mr. Thangarasa which was not part of the evidence at the hearing.

The issue in this motion is:

Can the arbitration hearing in this matter be reopened pursuant to Rule 43 of the Dispute Resolution Practice Code to permit the filing of the DAC report of Work Able Centres Inc., dated September 17, 2004?

Result:

This matter may not be reopened pursuant to Rule 43 of the Dispute Resolution Practice Code to permit the filing of the DAC report of Work Able Centres Inc.

EVIDENCE AND ANALYSIS:

Mr. Thangarasa's arbitration hearing has already taken up considerable time. It commenced on December 8, 9, 10 and 11, 2003 continued on May 31 and June 1, 2004, and finally finished on June 28, 29 and 30, 2004. The central issue in this matter has been whether Mr. Thangarasa is unable to work in any occupation for which he is suited by reason of his education, training or experience and, consequentially, whether the Insurer is obliged to pay ongoing income replacement benefits.

As part of the arbitration process I have heard from Mr. Thangarasa, family members, psychologists, psychiatrists, and occupational therapists. Evidence and reports have been presented concerning Mr. Thangarasa's vocational aptitudes, including the interpretation of psychological and vocational test scores. Both sides have provided lengthy submissions about how I should interpret the evidence that I have heard, and what conclusions I should draw from the evidence before me.

Having completed the hearing process, but before the issuance of a final decision in this matter, I am now being asked by the Insurer to reopen the hearing for the presentation of further evidence, namely, the report of a DAC report issued by Work Able, well after the conclusion of the hearing. Mr. Thangarasa has not consented to any reopening of the hearing and, indeed, has vigorously opposed the introduction of new evidence.

Rule 43 of the Practice Code provides for the reopening of a hearing. Subrule 43.1 states:

The arbitrator may reopen a hearing at any time before he or she makes a final order disposing of the arbitration.

The Rule is permissive, not mandatory, and creates a discretion for an arbitrator to reopen a case, as long as the final order in the matter has not been issued.

Requests to reopen hearings and bring new evidence are not without precedent, either in the context of arbitrations at the Commission or in the court system.

Arbitrator Manji, in Tran and Pilot Insurance Company (OIC A-005207, August 16, 1995), dealt directly with the requirements to reopen a hearing. After finding that an arbitrator has full control of the post-hearing process and that it is within the arbitrator's discretion whether to receive further evidence, Arbitrator Manji concluded:

I believe that an arbitrator should exercise his or her discretion to receive further evidence after the case is closed only in exceptional or extraordinary circumstances. To do otherwise would be to delay and jeopardize the arbitration process and the finality required in the process.

The arbitrator further outlined some of the criteria for a decision to reopen a hearing:

...even where the evidence is relevant it may be refused when it is offered after the case is closed. In my view, before an arbitrator exercises his or her discretion to receive further evidence, he or she must be satisfied that not only is the evidence relevant but it is also so weighty that if adduced it would have an important influence on the result of the case. It must also be shown that the lateness of its preparation was justified by unusual circumstances beyond the control of the party seeking to adduce it. If the evidence was available to or within the control of the party before the case is closed, it should not be admitted.

The criteria defined by Arbitrator Manji are reminiscent of the criteria for the introduction of new evidence on appeal in the court system. The Court of Appeal may hear evidence on appeal in civil cases, in special circumstances. Likewise, appeal courts in criminal matters may hear new evidence pursuant to section 610(1)(d) of the Criminal Code. Although the wording of the provisions and the precise legal basis for the introduction of new evidence may differ in the criminal sphere from practice at the Commission, the discussion of these issues is relevant to practice at this tribunal.

The most frequent jurisprudence on the issue of new evidence derives from the Criminal Code procedures. Ritchie J. observed in McMartin v. The Queen, (1964) S.C.R. 746, the rules applicable to the introduction of new evidence in the Court of Appeal in civil cases are not applied with the same rigour in criminal cases. Even so, he concluded that new evidence should not be admitted as a matter of course, but rather only in the existence of special circumstances.

The Supreme Court in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, summarized the criteria for the admission of new evidence. Mclntyre J., in delivering the judgement of the court, developed the following principles:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases...

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

Gore Mutual submits that the DAC assessment report it wishes me to consider is "relevant to the issue of Mr. Thangarasa's employability" and provides "both weighty and credible evidence."² Specifically, the Insurer zeros in on the DAC assessor's comments on the validity of the testing, and his suspicions of symptom magnification and "deliberately exaggerating any cognitive or physical impairment."

The question of the validity of psychological testing performed by Mr. Thangarasa is not new to this matter. Both parties have had professionals examine Mr. Thangarasa. Both parties have had their experts evaluate the results of psychological tests performed by Mr. Thangarasa.³ Although there has been some consistency in the outcome of the testing, there has been a strong divergence as to the interpretation to be given to the low test scores. Dr. K. Zakzanis' comments on potential symptom exaggeration only echo a consistent theme sounded by Gore Mutual throughout this lengthy hearing.

Likewise, Mr. Thangarasa's credibility has been an issue for the Insurer throughout the hearing, with the Insurer submitting video-surveillance in support of its view that Mr. Thangarasa exaggerated his disabilities.

From a "due diligence" point of view, it is clear that the report as constituted could not have been produced prior to or during the hearing. It simply did not exist. Its contents as noted, however, reflect information that could have been and, indeed, was presented to me as part of the arbitration. While the report itself could not have been admitted with due diligence, the report fails the first Palmer test, since the pith and substance of the evidence it contained was available earlier, albeit, not through the intermediary of Dr. Zakzanis.

Notwithstanding Ms. Wolanski's submissions, however, I accept that the opinions of Dr. Zakzanis, as expressed in the med-rehab DAC, are potentially relevant. They deal with issues that are central to this arbitration such as the degree of Mr. Thangarasa's intellectual impairment and the interpretation of his psychological test scores. That, alone, however, is insufficient to reopen this hearing.

Not all relevant evidence is presented at a hearing. Indeed, the practice at the Commission is to encourage parties to rely on the most cogent evidence at the hearing, and to eliminate unnecessarily repetitive evidence. To this extent parties are restricted to a maximum of two expert witnesses at the hearing, regardless of the potential relevance of any such further testimony. As Cumming J. noted in Sagaz, "it would be an abuse of the judicial process to allow proceedings to be repetitive."⁴

Given the ongoing nature of many accident benefit claims, it is inevitable that new evidence or variations of old evidence will arise both during the claim and adjudication process. There will always be the potential to create a perpetual process, with no end in sight. In Sagaz, Cumming J. commented:

There must be a finality to litigation and to court proceedings. Subject to the right of appeal, there must be finality to a judgment rendered except in very exceptional circumstances.

What then can this latest DAC report add to the evidence that is already before me? On the face of it, it may repeat the same point of view that has already been heard. While repetition may serve to reinforce the credibility of others who have uttered the same opinions, the same repetition may also degenerate the provision of expert evidence into mere compurgation.⁵

Having examined the new report, and reviewed the opinions expressed already by Drs. Doxey, Kaplan and Freedman, already in evidence, I do not accept that Dr. Zakzanis provides anything new to this hearing. He tested Mr. Thangarasa. Mr. Thangarasa scored low on all the tests. He speculated that the low scores were due to intentional underperformance. This is nothing new. I am not convinced that it constitutes evidence "such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result."⁶

Arbitration at the Commission is designed to be, to quote the introduction to the Code, "quicker, less expensive and less formal." Given the goals of the arbitration process, it is understandable why the Commission has developed the criteria identified in Tran (supra). To create a fair process that works within reasonable time constraints, parties must be encouraged to put forward their best case at the hearing, and not be tempted to add to it piecemeal in accordance with the vagaries of the arbitration process.

Counsel for Mr. Thangarasa submits that to allow this new DAC report to be entered in evidence now would entail the recall of various expert witnesses to comment on the conclusions drawn by Dr. Zakzanis from the test results, as well as the necessary cross-examination of Dr. Zakzanis himself. I accept that further serious delays could result from the tendering of this report.

In any balance of factors, the potential prejudice to the Applicant of further delay in a decision in this matter does not seem to be compensated for by the cogency of the proposed evidence.

I also find that, given the lack of novelty in the proposed evidence, the new evidence would have been unlikely to have changed the result of the arbitration.

EXPENSES:

Mr. Thangarasa was successful in opposing the reopening of this matter. The Insurer's motion has further delayed the completion of this hearing. Therefore, I exercise my discretion to award Mr. Thangarasa his expenses incurred in this motion, which I fix at $600.

February 1, 2005

John Wilson Arbitrator

Date

ARBITRATION ORDER

Neutral Citation: 2005 ONFSCDRS 11